Uttarakhand High Court
Pramod Nautiyal And Anr vs State Of Uttarakhand And Ors on 18 December, 2015
Equivalent citations: AIR 2016 (NOC) 314 (UTR.)
Bench: K.M. Joseph, U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (PIL) No. 98 of 2011
Pramod Nautiyal and another ......... Petitioners
Versus
State of Uttarakhand and others ......... Respondents
Present: Mr. Sudhir Kumar Advocate assisted by Mr. V.K. Kaparwan,
Advocate for the petitioners.
Mr. Subhash Upadhyay, Chief Standing Counsel for the State
of Uttarakhand/respondent Nos. 1 to 4.
Mr.Anil Kishore Sharma and Mr. Rajeshwar Singh, Advocates
assisted by Mr. Piyush Garg, Advocate for respondent No.5.
Mr. Sharad Sharma and Mr. Arvind Vashisth, Senior
Advocates assisted by Mr. Pradeep Chamiyal, Advocate for
the intervener.
Mr. Ramji Srivastava, Advocate for the intervener.
Coram : Hon'ble K.M. Joseph, C.J.
Hon'ble U.C. Dhyani, J.
JUDGMENT
Date: 18th December, 2015 K.M. Joseph, C.J. (Oral) This is a writ petition purporting to invoke the Public Interest Litigation jurisdiction of this Court filed under Article 226 of the Constitution of India. There are two petitioners. The prayers sought by them are as follows :-
"a. Issue a writ, order or direction in the nature of Mandamus directing the State Government to take all the necessary steps for the protection of the property of Shri Bharat Ji Temple, Trust situated in Khasra Nos. 276, 84, 74, 279, and 298 of Tehsil Rishikesh;
b. Issue a writ, order or direction in the nature of Mandamus directing the State Government to appoint the Receiver for protection of the property of Shri Bharat Ji Temple, Trust;"
2. Briefly put, the case of the petitioners is as follows :-
2Petitioner No.1 is the President of Working Journalist Union, Rishikesh, whereas petitioner No.2 is a religious person, who has a keen interest in the protection of Bharat Ji Temple Trust. It is stated that the question of law, which arises for consideration in the present petition, is that, whether the land which was given to a temple on donation and is exceeding the ceiling limit after the enforcement of the U.P. Zamindari Abolition and Land Reforms Act, 1952 will vest in the Government or not ? It is also stated that Shri Bharat Ji Temple, Trust is a very old religious charitable Trust, exempted from Income Tax under Section 11 of the Income Tax Act, 1961. The present Manager/Mahant of the said Trust Shri Ashok Prapanna Sharma, grand son of Late Mahant Paras Ram is getting `24,000/- per annum from the said Trust, thus he is the employee of the said Trust. It is their case that Shri Bharat Ji Mandir Trust is an ancient famous temple situated in Rishikesh, District Dehradun. The then King of Tehri donated 11,561 Bigha land to the said Shri Bharat Ji Temple Trust for its maintenance with certain terms and conditions laid down in the record of right (Wajib-ul-arz). According to the condition laid down in the said Wajib-ul-arz, the Manager/Mahant of Shri Bharat Mandir Trust, Rishikesh is called Numberdar (it should be read as Lambardar/Zamindar), who has no right to sell and transfer the property so donated to the Bharat Ji Mandir Trust. It is their case that Shri Parasram, Mahant of the Trust has executed several lease deeds in favour of his family members and his family members sold the same to other persons and in collusion with the Revenue Authorities, the family members of the Mahant have got their names recorded in the revenue records and on the basis of entries in the revenue records, the family members of the Mahant and Mahant himself are selling the property of Shri Bharat Ji Mandir Trust for their personal benefits. Annexure-3 purports to be copies of the lease deeds produced collectively. Reference is made to the U.P. Zamindari Abolition and Land Reforms Act, 1950, which is alleged 3 to have been made applicable to Rishikesh from 01.07.1952, but prior to the enforcement of the said Act, Mahant Parasram, grand father of the present Mahant (who is impleaded as the 5th respondent), has executed several lease deeds in the name of his family members. The illegalities were brought to the knowledge of the Secretary, Religious Tourism, Government of Uttarakhand by one Shri Rakesh Kumar Pandey and others. An inquiry was ordered and the Government of Uttarakhand issued a Government Order not to mutate the land in favour of anyone. There is also reference to another Government Order dated 30.07.2009 banning the registration of documents. There is reference to the reports of the Residential Magistrate (Annexure-8), Sub Divisional Magistrate (Annexure-9) and Government Order directing the District Magistrate to take action according to the record (Annexure-10). There is reference to suits filed under Section 229B of the U.P. Zamindari Abolition and Land Reforms Act, 1952. It is alleged that the property of Bharat Ji Temple Trust is being misused by sale and transfer by the present Mahant and there are inquiries and it is on the said basis essentially that relief was sought.
3. This Court on 23.11.2011 admitted the writ petition and issued notice to the 5th respondent and passed the following order :-
"Until expressly permitted by this Court, Sub- Registrar, Rishikesh, Dehradun is restrained from registering any deed of conveyance pertaining to transfer of any land belonging to Shri Bharat Ji Mandir Trust. The Sub-Registrar, Rishikesh, Dehradun is directed to produce copies of all documents registered in his office, whereby and under, any one, either purporting to act on his behalf or on behalf of Shri Bharat Ji Mandir Trust, has transferred any property belonging to Shri bharat Ji Mandir Trust to any person. The Sub-Registrar, Rishikesh, Dehradun is further directed to produce all such documents pertaining to all such land mentioned in Wajib-ul-arz."4
4. Time is now ripe to notice the stand taken by the 5th respondent.
5. The case of the 5th respondent, inter alia, is as follows:-
Respondent No.5 is Mahant of Mandir Bharat Ji Maharaj, Rishikesh. Mandir is the owner and in possession of the land of village Rishikesh. He questions the maintainability of the writ petition and he definitely sets up the case that the writ petition is the grossest misuse of public interest jurisdiction and the writ petition was filed with ulterior motive. The petitioners have been set up by legal heirs of Pitamber Dutt, namely, Ravindra Bijlwan, Vinod Bijalwan, with whom the 5th respondent has long established enmity and personal grudge. It is specifically stated in para-5 of the counter affidavit filed on behalf of the 5th respondent as follows :-
"5. That the sole reason for filing writ petition in the name of petitioner by legal heirs of Pitamber Dutt is that in respect of property of plot No.74 which was illegally encroached by Pitamber Dutt in the year 1970 a suit under Section 229B read with Section 209 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act was filed for eviction of Pitamber Dutt and said suit was contested by said Pitamber Dutt and was ultimately decided and a proceeding in respect of said suit was recently decided on 07.12.2011 and the deponent is preparing to challenge the said order."
6. Thereafter, it is pointed out in the counter affidavit filed on behalf of the 5th respondent that the British Government, vide order dated 31.08.1947 has released village Rishikesh in perpetuity in favour of Bharat Ji Maharaj Birajman Bharat Mandir, Rishikesh under the management of Basu Dev Giri, resident of village Rishikesh, Mahant of Temple and his successor. Annexure CA-1 purports to be the extract of revenue tenure register. Bharat Mandir, Rishikesh is stated to be an ancestral temple, which belongs to Vaishnav Sect of Acharya Brahamins. From generation to generation Acharya Brahamins are doing Pooja and Seva of Lord 5 Bharat Ji Maharaj Birajman in Bharat Mandir, Rishikesh and the public has only right of Darshan by custom. After the death of Mahant Basudev Giri, Laxman Das became Mahant and after the death of Laxman Das, Shri Ram Ratan became Mahant and still later Parasram became Mahant and it is on the death of Parasram that the 5th respondent became Mahant of the Mandir. In the year 1981, and thereafter, in the year 1949, proceedings under Section 92 of Civil Procedure Code were undertaken. Annexure CA-2, judgment of the District Judge, Saharanpur dated 12.05.1954 passed in a suit filed under Section 92 of the CPC is produced to show that a finding is rendered that the temple is not a public trust, but an institution owned by a certain sect of Vaishnav Acharyas, and Mahantship of this temple has been conferred on certain individual in succession, i.e. from guru to the chela or to the son. There is further reference to a suit filed by the predecessor-in- interest for damages against Purohit Parasram. Purohit Parasram was claiming himself as Tirth Purohit of Maharaj Tehri. Annexure CA-3 is the judgment in First Appeal No. 173 of 1959 dated 01.12.1971. It was found, inter alia, that defendant No.1 therein was not the owner of the plots of land in suit and was not entitled to interfere with the possession of plaintiff thereof. Thereafter, there is reference to order dated 20.03.1968, which was received from Additional District Magistrate (Executive), Dehradun informing him (predecessor-in-interest) that according to Government Order dated 06.03.1968, the 5th respondent has no right in respect of stone, bajri and boulder and limestone found in town Rishikesh or deposited over the surface of the land of river Ganga and Chandrabhaga and directed him not to auction them in future. The same was challenged by the 5th respondent in Writ Petition No. 1193 of 1968 before Hon'ble Allahabad High Court. Annexure CA-4 is the judgment, which was rendered in Special Appeal No. 967 of 1969. We deem it apposite to refer to first paragraph and the last paragraph of the said judgment as follows :-
6"The appellant is the Mahant of Mandir Bharat Ji at Rishikesh. He is admittedly the proprietor of the entire town of Rishikesh. In this town there is the confluence of Chandrabhaga and Ganga rivers. When the water of these rivers recede back in the winter and summer seasons, there are deposited a lot of boulders, stones, bajri and sand by the banks of the rivers. The appellant claims to be the proprietor of these materials and asserts to appropriate them. The respondents deny their ownership of these materials and seek to interfere with his appropriating these materials. Hence the appellant filed a writ petition in this Court. The petition was heard by a already Single Judge, who dismissed it.
. . . . .
The appeal is allowed. The appellant is declared to be the owner of boulders, stones, bajri and sand which the rivers Ganga and Chandrabhaga deposit on the surface of land after they have receded within the Municipal Limits of Rishikesh. The respondents are restrained from enforcing the provisions of the U.P. Minor Mineral (Concession) Rules 1963 in respect of the aforesaid minerals against the appellant. The appellant shall get his costs."
7. The judgment in Special Appeal is dated 14.09.1970. The application to leave carried against the same by the State Government was dismissed on 20.01.1972. Thereafter, it is stated that one Swami Ram Kishan Atma Nand Puri making false allegations against the 5th respondent on the ground that he had encroached upon the land of the Mandir filed a suit against Swami Ram Kishan Atma Nand Puri for possession and mesne profits. There are allegations against the President of the Trust. Reference is made to the U.P. Hindu Public Religious Institutions (Prevention of Dissipation of Property) Act, 1962 (hereinafter referred to as "1962 Act"). There was action commenced under the same. Initial Investigating Officer, whose report was favourable to the 5th respondent was sought to be replaced by obtaining another report from another Investigating Officer. A person was appointed as receiver and the order of Commissioner by which the receiver was asked to investigate was called in question before Hon'ble Allahabad High Court, who by Annexure C.A.-13 dated 21.12.1994 7 allowed the writ petition and set aside the order of the Commissioner. It is herein again appropriate that we refer to the following portions from the said judgment:-
"This relates to a very ancient Temple "Bharat Mandir Rishikesh", which belongs to Vaishnav Sect of Acharya Brahmins. From generation to generation Acharya Brahmins are performing 'Pooja' and 'Seva' of Lord Bharat Ji Maharaj Birajman in the said temple. The people had only the right of Darshan by custom.
We do not find it necessary to go into the history of the litigation. Since the contention has been confined to the validity of the order of the Commissioner contained in Annexure-11. Two fold submissions have been made; that the Commissioner acted beyond jurisdiction in appointing receiver in exercise of his power under section 8 of the Act and further that in any case before exercising such power he had to afford reasonable opportunity of hearing to the petitioners.
On a plain reading of the provisions of Section 8 of the Act, it would appear that the power to appoint a receiver is only in a case where the direction relating to the deposit of surplus funds in the hands of trustees or manager in any recognized bank or security was not carried out within the specified period and only in case of non-compliance of such direction, the Commissioner shall have the power to appoint a receiver to comply with the direction. From the reading of the impugned order, these conditions do not appear to have been taken into account by the Commissioner before appointing the receiver. It does not appear that there was any such direction to the petitioners and, further, they failed in carrying out the said direction. Thus, obviously, the Commissioner acted beyond jurisdiction and the impugned order must be set aside on this ground as also on the ground of failure to afford reasonable opportunity of hearing to the petitioners.
In accordance with the provisions contained in section 6(2) of the Act the Investigating Officer shall, after having completed the survey, prepare and submit to the Commissioner, a statement and in accordance with that the Investigating Officer has submitted his statement to the Commissioner dated 9th June, 1990. In accordance with the provisions of Section 6 of the Act the State Government or the Commissioner may, where it or he apprehends within its or his jurisdiction that the property of any Hindu Public 8 religious institution appearing to it or him, is likely to be dissipated, then the Investigating Officer will be directed to make a survey as provided therein of such Hindi Public religious institution.
From the record of this case we do not find any statement recorded anywhere that the State Government5 or the Commissioner, in this case, had the reasonable apprehension of the likely-hood of dissipation of the property of the petitioners' institution. In any view of the matter, the Investigating Officer has submitted his statement to the Commissioner on 9th June, 1990, which is in favour of the petitioners."
8. The said judgment was called in question by Swami Ram Kishan Atma Ram Puri, who filed SLP No. 1048 of 1995 and the same was dismissed by Annexure CA-14 dated 10.05.1995. There is reference to a writ petition filed by Swami Ram Kishan Atma Ram Puri under Article 32 of the Constitution of India, wherein the prayer was as follows :-
"Issue a writ, order or direction in the nature of Mandamus or any suitable writ, order or direction commanding the respondents nos. 1 to 5 to immediately take steps to stop illegal excavation and mining activities carried on extracting minerals by the respondent no. 6 or his contractors, agent, servants under the name of "Zamindari Nadi Shri Bharat Ji" on Nav Ghat area and on both side of bridge of Chandra Bhaga river (comprised in plot numbers shown in extract of Khautauni P-2 herein) down upto River Ganges of Rishikesh: which because of Zamindari abolition and particularly after the State Govt. Order dated 19.12.1974 vide Notification No. 182/1-1(23)74 had been in the State Govt."
9. It is stated that Swami Ram Kishna Atma Ram Puri after failing in the matter of appointment of Receiver under the provisions of 1962 Act had filed the writ petition under Article 32 of the Constitution, and thereafter, he sold the property of Mandir upon which he raised the construction to Smt. Alpana Arora and left the town of Rishikesh after the huge consideration from the 9 purchaser. The 5th respondent had filed a suit for cancellation of sale deed, which is pending before the Civil Court. That everybody in town Rishikesh wants to grab the property of Mandir and whenever such attempts were made the same were resisted by the 5th respondent. Paragraph 40 of the counter affidavit, being very relevant, we extract the same:
"40. That the allegation that the Respondent No 5 has transferred the land of the Mandir is incorrect and false. It may be stated here that till date no sale deed has been executed by respondent no. 5 regarding the land of the Mandir."
Thereafter in paragraphs 41, 42, 43, 44, 45, 46, 47 & 48 of the said counter affidavit, it is stated as under :-
"41. That the total area of the land recorded in the name of Mandir in 12the Settlement was 11561 bigha 13 Biswas out of this area 8257 Bigha 6 Biswas was not included with the limit of local body/ Nagar Palika Rishikesh on 7-7-1949. The said area after enforcement of U.P. Act 1 of 1951 vested in the State and name of Mandir was expunged and from the said area vested in the State, the remaining area i.e. 3180 bigha 14 Biswa was within limit of Nagar Palika Rishikesh. On 7.7.1949, remained in the khewat after enforcement of Act 1 of 1951.
42. That thereafter in the year 1956 U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1956 (herein after referred to as Urban Area Act) approximately 519 Bigha 18 Biswas land has vested in the State Government under Section 8 of the Urban Area act.
43. that thereafter 69 bighas 5 biswa of land had been acquired by the State Government for the purposes of post office, nagar Palika and Defense Department and entry has been made in Khatauni 1368-1371 Fasli and entry is also made in Khatauni of the village.
44. That reduction in area is due to the application of provisions of Act No. 1 of 1951 and U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1958 and 10 also acquisition of land by the State and Central Government.
45. That provisions of United Provinces Land Utilization Act, 1948 were applicable to town Rishikesh.
46. That District Magistrate, Dehradun vide letter No. 131A RA dated 24-01-1950 and letter No. 122ARA dated 17.11.1949 directed Bharat Ji Maharaj Mandir through Mahant Parasram to let out land of Deity to the tenant for agricultural purposes under the provisions of Land Utilization Act, 1948. In compliance of order/letter of District Magistrate, Dehradun uncultivable land of Deity was let out to various tenants under the provisions Land Utilization Act read with U.P. Tenancy Act. It may here be stated that pursuant to order of District Magistrate if the then Mahant failed to take action the District Magistrate had the power under the Land Utilization Act to let out the land mentioned in the notice dated 24.1.1950 and 1711.1949 True copies of said notices are being filed as ANNEXURE-CA-16 and 17' to this affidavit. As such the of land of Deity of plot No. 276, 279, 298, 84, and 74 and land of plots mentioned in the letter of District Magistrate dated 17.4.1949 and 24-1-1950 was let out. In compliance of roder of Collector under Land Utilization Act, 193 acres of land was let out to various tenants by Mahant Parasram, under provisions of U.P. Tenancy Act and the persons to whom land was let out were tenets of Deity and were paying rent to Deity.
47. That Uttar Pradesh Zamindari and Land Reforms Act, came into force and the aforesaid tenants/tenure holders got sirdari right under Section 19 of the Act No., 1 of 1952. Thereafter aforesaid tenure holders acquired Bhumidhari right after deposit of ten times of land revenue on 22.4.1959 and Sanad Bhumidhari was issued to the aforesaid tenure holders, The tenure holders acquired right over plot no. 279/1 by operation of law and no part of the said land has been transferred to tenant by the then Mahant. It may be stated thatprior to enforcement of Zamindary Act, tenants/tenure holders were paying rent to Bharatji Maharaj Mandir and after enforcement of Act No. 1 of 1952, the land revenue is being paid to the State Government.11
48. That regarding plot no. 74 having an area of 63.44 acres it is respectfully submitted that Mahant Parsram on behalf of Bharatji Maharaj Mandir executed a lease of aforesaid area in the month of March, 1952 in favour of Lalit Mohan and Jyoti Prasad and thereafter this land was notified Under Section 4 of Indian Forest Act alongwith other land of village Rishikesh. The Forest Settlement Officer vide order dated 24.3.1963 allowed the claim of Lalit Mohan and others. An appeal filed by the State Government was rejected by the Appellate Authority i.e. Commissioner Meerut Division, Meerut vide order dated 31-12.1963. Thereafter Lalit Mohan Sharma and others moved an application for exclusion of their land from the limits of proposed reserved forest and which was allowed by the Forest Settlement Officer The forest Settlment Officer demarcated the area of Lalit Mohan and Jyoti Prasad separately and also demarcated the land of other tenure holders and forest department."
10 Rejoinder affidavit is filed denying the allegations as such.
11. The writ petition consisting of one volume has ballooned into nine volumes.
12. We heard the learned counsel for the petitioner Mr. Sudhir Kumar assisted by Mr. V.K. Kaparwan; Mr. Anil Kishore Sharma, Mr. Rajeshwar Singh and Mr. Piyush Garg, Advocates appearing on behalf of respondent No. 5; Mr. Sharad Sharma, Mr. Arvind Vashistha, Senior Advocates, Mr. Ramji Srivastava, Advocate, appearing on behalf of the interveners; and Mr. Subhash Upadhyaya, learned Chief Standing Counsel for the State.
13. The first and the fundamental question we must address is, whether the approach made by the petitioners to this Court in the garb of public interest litigation was with any bona fides or justification.
1214. The contours of public interest litigation, from its origin in the middle of 1970s, have expanded considerably. Essentially, public interest litigation began as a very potent and effective tool in the hands of the superior courts to reach justice to the needy and the poor, the hapless and the helpless, blinded and the bonded labourers, persons who were not being paid minimum wages, poverty stricken multitudes in the length and breadth of the country. It is indeed a unique contribution made by the superior judiciary in India to the jurisprudence of the world and it is hailed as such. But, over a period of time, it has unfortunately being used by many in pursuit of their private interests. The courts are already labouring under the effect of docket explosion. Litigants queue up in the courts with their individual grievances in cases where they have locus and, particularly, in proceedings under Article 226, where they would expect quick justice. Nobody can, in any manner, discount the importance of public interest litigation when it is properly utilized; its impact on the justice delivery system, when it is abused, can be calamitous. We would think that the courts must remain ever vigilant so that the stream of justice is not polluted and it is not made use of as a medium for settling scores.
15. We are of the clear view that this is a case, where the petitioners were completely unjustified in the facts of the case in approaching this Court with the relief sought in the writ petition. The allegations, which have been made, have been made without reference to the facts, which have been brought out in the counter affidavit and which we have made reference to. Leave was granted under Section 92 of the Code of Civil Procedure and the leave was contested. Finally, an order was passed by the District Court, wherein one of the issues, which were raised, was, 'is the temple trust in question a public trust, an institution which is religious and charitable'. Issue No. 1 is answered against the plaintiffs. In the course of the discussion, the learned Judge holds as follows:
13"So the evidence of the plaintiffs itself proves that this temple is not a public trust but an institution owned by a certain sect of Vaishanva Acharyas and Mahantshir of this temple has been arranged concerned on certain individuals in succession i.e. from the Guru to the Chela or to the son. It is futile to assert that the temple belongs to Bairagis, because Ram Ratan Dass was not a Bairagi but he was a Ghirast and Mahant Paras Ram is his son. So I decide the issue against the plaintiffs."
16. We notice the argument of Mr. Anil Kishore Sharma, learned counsel appearing on behalf of respondent No. 5 that a suit under Section 92 is representative in character and the judgment is a judgment in rem, which binds the whole world and, therefore, the averments made in the writ petition are unfounded.
17. Undoubtedly, Mr. Sudhir Kumar, learned counsel appearing for the petitioner, would point out that the finding as such, in fact, does not go to the extent of holding that it is not a public religious trust. He does not dispute that a judgment under Section 92 is one in rem. Mr. Sudhir Kumar, in fact, would point out that the predecessor-in-interest of the 5th respondent had effected leases of the property of the temple in question to several persons including his own son. He would submit that they have sold the property and, therefore, there is warrant for the petitioners' approaching this Court in public interest litigation.
18. We may briefly notice the position as regards a Mahant. In Sudhindra Thirtha Swamiar and others vs. The Commissioner for Hindu Religious and Charitable Endowments, Mysore and another, reported in AIR 1963 Supreme Court 966, we notice the following:
"A Mahant is not a mere manager or custodian, nor is he a trustee in the strict sense: holding the office of a Mahant by custom and usage of the institution he has besides large proprietary rights over the property of the Math. But he is by virtue of his office under an obligation to discharge the duties 14 as a trustee and is answerable as such. The Mahant of a Math is generally a Sanyasin who has renounced worldly affairs:
he has no family ties either by blood or by marriage, and in a theoretical sense he has taken a vow of not owning any property. He has undoubtedly, for the benefit of the institution of which he is the head, large powers; he has to incur expenditure for worship, for the disciples and for maintaining the dignity of his office. But the property is attached to the office and is devoted to the endowment. He cannot, therefore, incur expenditure for personal luxury or objects incongruous with his position as a Mahant: AIR 1954 SC 282 and AIR 1919 PC 62 and AIR 1922 PC 123, Rel. on.
The right of a Mahant over the property of the Math is undoubtedly 'property' and unreasonable restrictions placed upon the right of the Mahant which is not in the interest of the general public would, by virtue of Art. 19(1) (f) read with cl. (5) of the Constitution of India be void. Reasonableness of the restrictions which may be placed upon that right must be adjudged in the light of the character and the extent of that right, and the general interest of the public which may be served by the restrictions.
The power of the Mahant over the income does not differ in quality from the power he has over the property of the Math. The property and the income belong to the Math, and must therefore be applied for the purposes of the Math, and consistently with the usage and custom of the endowment. By S. 52(1) (f) application of funds or properties for purposes unconnected with the institution i.e. purposes for which the custom of the institution does not warrant application, is a ground for removal of the Mahant. It cannot be said that by enacting a provision which enables a Court in an appropriate case, to remove a Mahant, if it be found that he has applied the funds or the properties of the institution for purposes unconnected with the institution, any unreasonable restriction is sought to be placed. This provision does not in effect seek to cut down the authority of the Mahant which is traditionally reconised. It merely implies that by virtue of his position and the limited character of his powers he may not waste the property of enjoyment or luxury or for objects incongruous with his position or for purposes wholly unconnected with the Math; if he does so, he may by order of the Court be liable to be removed. Such a restriction on the power is in the interest of the general public, cannot be said to be unreasonable. AIR 1919 PC 62 Rel. on."15
19. We may also profitably refer to a Bench decision of the Punjab & Haryana High Court in Shiromani Gurdwara Prabandhak Committee, Amritsar vs. Sewa Singh, reported in AIR 1973 Punjab & Haryana 414. Therein, the Bench was dealing with a case of a lease of Gurudwara land by Mahant for 20 years to his relations and the court, inter alia, held as follows:
"9. While disposing of this contention, it has to be borne in mind that in the present case, we are not concerned with the power of a Mahant to sell the properties belonging to the institution or create a permanent lease regarding them. What we have to decide is whether the Mahant could lease the property for a limited period of 20 years and if so, in what circumstances? It was conceded by the learned counsel for the appellant that the law governing such cases was that if the manager of a religious institution effected a temporary alienation of the land for necessity, then such an alienation was valid. But if necessity for the lease in question was not established then in such circumstances, it would have no effect after the death of the Manager or the termination of his office, whichever was earlier. Reference for this proposition of law may be made to a Bench decision of Tek Chand and Hilton JJ. In Mathra Dass v. Gopal Nath, AIR 1929 Lah 816, where it was held:
"No necessity for the lease in question has been established and in such circumstances, it is settled law that the lease cannot have effect after the death or termination of the incumbency of the office by the Mahant who made it."
10. Reliance for this was placed by the learned Judges on the Privy Council ruling in Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar, AIR 1922 PC 123. Atttention is also invited to para 415 of Mulla's Hindu Law, 13th Edition, where it has been stated-
"Nor can he (shebait or a mahant), except for legal necessity, grant a permanent lease of debutter property, though he may create proper derivative tenures and estates conformable to usage."
A number of authorities have been mentioned by the learned author in support of this proposition.
11. Reference may also be made to para 90 of Rattigan's Digest of Customary Law, 14th Edition, where it is said-"Except for necessary pruposes, no property belonging to a religious institution can be permanently alienated."
1620. In Shri Krishna Singh vs. Mathura Ahir and others, reported in (1981) 3 SCC 689, the Apex Court, inter alia, held as below:
"(1) A math is an institutional sanctum presided over by a superior who combines in himself the dual office of being the religious or spiritual head of the particular cult or religious fraternity, and of the manager of the secular properties of the institution of the math.
The property belonging to a math is in fact attached to the office of the mahant, and passed by inheritance to no one who does not fill the office. The head of a math, as such, is not a trustee in the sense in which that term is generally understood, but in legal contemplation he has an estate for life in its permanent endoments and an absolute property in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution. He is bound to spend a large part of the income derived from the offerings of his followers on charitable or religious objects. The words 'the burden of maintaining the institution' must be understood to include the maintenance of the math, the support of its head and his disciples and the performance of religious and other charities in connection it, in accordance with usage.
In the instant case, the evidence on record sufficiently establishes that a math came to be established at Garwaghat and the building known as 'Bangal Kuti' and certain other buildings, including the house in suit constituted the endowment of the math itself. It has been established that the followers of the Sant Mat fraternity are members of a religious order, that it is a religious institution of monastic nature, that it is established for the service of the Sant Mat cult, the instructions in its tenets and observance of its rites and that the Swamiji, who is the guru is the mahant, the spiritual and religious leader of the fraternity.
(2) One who enters into a religious orders severs his connection with the members of his natural family. He is accordingly excluded from inheritance. Entrance to a religious order, is tantamount to civil death so as to cause a complete severance of his connection with his property. Neither he nor his natural relatives can succeed to such other's properties. Any property which may be subsequently acquired by persons adopting religious orders passes to their religious relations. The persons who are excluded on this ground come under three heads, the vanaprastha, or hermit; the sanyasi or yati, or ascetic, and the brahmachari, or 17 perpetual religious student. In order to bring a person under these heads it is necessary to show an absolute abandonment by him of all secular property, and a complete and final withdrawal from earthly affairs. The mere fact that a person calls himself a byragi or religious mendicant, or indeed that he is such, does not of itself disentitle him to succeed to property. Nor does any sudra come under this disqualification, unless by usage. This civil death does not prevent the person who enters into an order from acquiring and holding private property which will devolve, not of course upon his natural relations, but according to special rules of inheritance. But it would be otherwise if there is no civil death in the eye of the law, but only the holding by a man of certain religious opinions or professions."
21. In Deoki Nandan vs. Murlidhar and others, reported in AIR 1957 SC 133, the Apex Court dealt with the matter in the context of religious endowment between a private and public trust and it is observed as under:
"The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. A religious endowment must, therefore, be held to be private or public according as the beneficiaries thereunder are specific persons or the general public or sections thereof:
Under the Hindu law, an idol is a juristic person capable of holding property and the properties endowed for the institution vest in it. But it does not follow from this that it is to be regarded as the beneficial owner of the endowment. It is only in an ideal sense that the idol is the owner of the endowed properties and it cannot have any beneficial interest in the endowment:
Even according to the texts, the Gods have no beneficial enjoyment of the properties, and they can be descried as their owners only in a figurative sense (Gaunartha). The true purpose of a gift of properties to the idol is not to confer any benefit on God, but to acquire spiritual benefit by providing opportunities and facilities for those who desire to worship:
When once it is understood that the true beneficiaries of religious endowments are not the idols but the 18 worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof.
Thus where property is dedicated for the worship of a family idol, it is a private and not a public endowment, as then persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.
Held on facts that the Thakurdwara in question was a public temple and not a family temple."
22. It is not the law, therefore, that a Mahant is prohibited from transferring the property. There is no absolute bar. He can do so in case of legal necessity. In V.K. Varadachari's Hindu Religious and Charitable Endowments, the learned author would state as follows:
"A mahant is not entitled to sell a portion of the Math property and invest the sale proceeds in money-lending or other business on the ground that the Math will be benefited by larger returns by way of interest. In Palanippa Chetty V. Deivasikamoney, the Judicial Committee observed:
"However attractive and lucrative money-lending may be in India, it is needless to point out that a shebait would not be justified in selling debutter and solely for the purpose of getting capital to embark in the money-lending business."
In Jado Singh v. Nathu Singh, AIR 1926 All 511 Their Lordships held that the term benefit to the estate can be applied to a transaction like the sale of inconveniently situated, encumbered and unprofitable property and to purchase in its stead other property. In Sital Prasad Singh v. Mander (AIR 1939 Pat 370) it was held that the expression "benefit to the estate" has a wider meaning that mere compelling necessity and is not limited to transactions of a purely defensive nature. An alienation by way of sale by a mahant of debutter property for the construction of a temple for the better housing of the idols was a meritorious act and was justified on the doctrine of benefit.
19While a mahant can sell a portion of the property belonging to the institution for legal necessities or benefit, he has no power to alienate the institution itself. Such a transaction is void ab initio. In one of the earliest cases decided by the Privy Council in Damodar Das v. Lakahan Das ILR (1910) 37 Cal 885, such a transaction was held void, resulting in the commencement of adverse possession from the date of transfer. The transfer of the Math and its properties is also void ab initio.
In Balmukund v. Kamalwati (AIR 1964 SC 1385), the Supreme Court approving the liberal view in Jagat Narain v. Mathuradas (1928) ILR 50 ALL 969 and Sital Prasad v. Ajvel Mander (1939) ILR 18 Pat 306 , has held that for a transaction to be regarded as being one for the benefit of the estate it need not necessarily be of a defensive character and the test would be, whether the transaction is one which a prudent owner would enter into in the course of management with foresight and without being reckless or arbitrary. An agreement to sell a fractionas hare which the family owned in certain lands could not be upheld as there was neither allegation nor proof that the family could not conveniently manage and enjoy the fractional share belonging to the family.
In Manikka Narasimhachari v. Ramasubbier (1970) 1 MJL 337, the Madras High Court has held that the words 'benefit to the estate" have to be understood in a liberal sense as opposed to the earlier narrow view that it must be of defensive character calculated to protect the estate from some threatened danger or destruction. The proper test is, whether the transaction could be upheld as alienation by a prudent owner with the knowledge that is available to him at the time of the transaction. When once the test to be applied is that of a prudent owner, the question whether the transaction is beneficial to the estate must necessarily depend upon he facts and circumstances of the particular case. The managing member or the trustee is not entitled to sell the property merely because the price fetched is attractive or for the purpose of investing the price with a view to get larger income than derived from the property itself. But the sale of unproductive property for an advantageous price or sale of property which is exceedingly difficult of enjoyment has been upheld as being one for the benefit of the estate or the trust.
A manager of a public trust religious or charitable, cannot gift the property to a chela or alienate it."
2023. The learned counsel for the petitioners would in fact, with reference to the terms of Wajib-ul-arz, point out that it is an incident of property that village cannot be alienated. The said portion reads as follows:
"Plaintiff's Exhibit Exhibit 88 No. 721-C.- Copy of Wajib-ul-arz
- concluded Para No. 15. Custom relating - As this village is the property of the to right of pre-emption. Temple, it cannot be sold at any time."
24. It is true that a Mahant cannot alienate a property in its entirety as we have noticed; but, it may not be the law that the Mahant is forbidden from alienating parts of it when there is legal necessity. In fact, complaint of the petitioners is based on leases by the previous Mahant. Even according to the pleadings, the 5th respondent has categorically stated that he has not sold any property of the Mahant.
25. In this case, we would think that, most importantly, apart from the fact that there would appear to be documents, which justify the 5th respondent contending that this is a gross misuse of the extra-ordinary and discretionary jurisdiction under Article 226 of the Constitution, be it under the umbrella of public interest litigtation, the case of this nature does not deserve to be entertained and considered utilizing the precious time of the court. The allegations are made against his predecessor, who is alleged to have created leases more than half centaury ago. Respondent No.5 has brought out its justification, which we have adverted to. The alienation, which have followed and continued, apparently comes on the heels of the said transactions leading to the conferment of greater rights in the property under the law of the land.
2126. Pursuant to the interim order of this Court, the Magistrate has prepared reports. As per the report, we notice that the land in possession of respondent No. 5 is stated to be 564 acres. The U.P. Legislature has passed the 1962 Act. There was power therein, which was, in fact, unsuccessfully invoked against the Bhart Ji Mandir, as the proceedings were found to be defective. The said Act was repealed by the State of U.P. in the year 2000 even before the State of Uttarakhand was created on 09.11.2000. The resultant position is that there is, actually, no law as such to deal with the institution in question. We do notice that there is the Religious Endowments Act, 1863. We also refer to Section 14 thereof, which, in the view of respondent No. 5, has provided remedy to the person, who is having interest in the matter. Section 22 of the said Act, in fact, reads as follows:
"22. Government not to hold charge henceforth of property for support of any mosque, temple, etc. - Except as provided in this Act, it shall not be lawful for the Central Government or any State Government, or for any officer of any Government in his official character, to undertake or resume the superintendence of any land or other property granted for the support of, or otherwise belonging to, any mosque, temple or other religious establishment, or to take any part in the management or appropriation of any endowment made for the maintenance of any such mosque, temple or other establishment, or to nominate or appoint any trustee, manager or superintendent thereof, or to be in any way connected therewith."
27. At once, Mr. Sudhir Kumar, learned counsel for the petitioners, would point out that the Act, itself, is not applicable. However, it is fairly conceded that, if the Act applies, this writ petition would not lie in the teeth of Section 22, as a writ will not lie in the face of a provision, which forbids a particular course of action, which is on the lines of the relief sought in the writ petition. We do not think that we have to proceed to consider the question 22 under Section 22, as we would think that even otherwise this writ petition is absolutely without any merit and basis. We would think that the relief sought by the petitioners, namely, calling upon the Government to take over the property in question and to appoint a receiver, is thoroughly misplaced. In fact, we may notice the following case-law also:
28. In Ramsharan Autyanuprasi and another vs. Union of India and others, reported in 1989 Supp. (1) SCC 251, the petition under Article 32 was not entertained. We may notice the following paragraph:
"15. In that view of the matter, resort to Art. 49 was not just. We think that invocation of the jurisdiction of this Court as a public interest litigation, in the background of the allegations made in the petition and in the context of this case, was wholly unjustified. Public interest litigation is an instrument for the administration of justice to be used properly in proper cases. Public interest litigation does not mean settling disputes between individual parties. This Court in Bandhua Mukti Morcha v. Union of India, [1984] 2 SCR 67 dealt with this question and Justice Bhagwati, as the learned Chief Justice then was, observed that public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social, economic and political justice which is the signature tune of our Constitution. He reiterated that the Court entertains public interest litigation, not in a cavilling spirit or in a confrontational mood or with a view to tilting at executive authority of seeking to usurp it, but its attempt is only to ensure observance of social and economic rescue programmes, legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the constitutional obligation of the executive. In the same decision it was observed by Justice Pathak, as the learned Chief Justice then was, that public interest litigation in its present form constitutes a new chapter in our judicial system, acquiring a significant degree of importance in the jurisprudence practised by our courts. The learned Judge deprecated individual communications and suggested that all communications and petitions invoking the jurisdiction of the 23 Court, must be addressed to the entire court, that is to say, the Chief Justice and his companion Judges. Judged by that standard, this petition does not seek to advance any public right. It seeks to exploit private grievances. Indeed, in a situation of this nature it is well to bear in mind the observations of the tailpieces in the decision in Sachidanand Pandey & Anr. v. State of West Bengal & Ors., [1987] 2 SCC 295 at 331 where the learned Judge highlighted the necessity to delineate the parameters of public interest litigation. The Learned Judge noted that today public spirited litigants rush to courts to file cases in profusion under this attractive name. They must, however, inspire confidence in courts and among the public, and must be above suspicion. Hence, it is imperative to lay down clear guidelines and outline the correct parameters for entertaining such petitions. If courts do not restrict the free flow of such cases in the name of public interest litigations, the traditional litigation along with justice will suffer. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. The learned Judge in the context of that case ended his judgment with a question: "Is there something more than what meets the eye in this case?". The answer in the instant case is obvious--there is very much more than what meets the eye in the instant case before us. This application must. therefore, fail and is accordingly dismissed."
29. We may also notice that the Apex Court has, in fact, harped upon the need to be cautious in the matter of entertaining public interest litigation in the judgment rendered by a three-Judge Bench in Guruvayoor Devaswom Managing Committee & another vs. C.K. Rajan & others, reported in (2003) 7 SCC 546, wherein the court, in fact, proceeded to hold as follows:
"50. The principles evolved by this Court in this behalf may be suitably summarized as under:
(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person 24 in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court.
The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people so as to direct the State to fulfill its constitutional promises. (See S.P. Gupta Vs. Union of India [1981 (supp) SCC 87], People's Union for Democratic Rights and Others Vs. Union of India (1982) 2 SCC 494, Bandhua Mukti Morcha Vs. Union of India and Others (1984) 3 SCC 161 and Janata Dal Vs. H.S. Chowdhary and Others (1992) 4 SCC 305).
(ii) Issues of public importance, enforcement of fundamental rights of large number of public vis-Ã
-vis the constitutional duties and functions of the State, if raised, the Court treat a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. (See Charles Sobraj Vs. Supdt. Central Jail, Tihar, New Delhi (1978) 4 SCC 104 and Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar (1980) 1 SCC 81).
(iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the International Conventions on Human Rights provide for reasonable and fair trial.
In Maneka Sanjay Gandhi and Another Vs. Rani Jethmalani, AIR 1979 SC 468, it was held:
"2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini-grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant, environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner's grounds on this touch-stone bearing in mind the rule that normally the complainant has the right to choose any court having jurisdiction and the accused 25 cannot dictate where the case against him should be tried. Even so, the process of justice should not harass the parties and from that angle the court may weigh the circumstances."
(See also Dwarka Prasad Agarwal (D) By LRs.
and Anr. Vs. B.D. Agarwal and Ors. 2003 (5) SCALE 138).
(iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, depraved, illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. (See Fertilizer Corporation Kamagar Union Vs. Union of India, AIR 1981 SC 344, S.P. Gupta (supra), People's Union for Democratic Rights (supra), Dr. D.C. Wadhwa Vs. State of Bihar (1987) 1 SCC 378 and Balco Employees' Union (Regd.) Vs. Union of India and Others [(2002) 2 SCC 333].
(v) When the Court is prima facie satisfied about variation of any constitutional right of a group of people belonging to the disadvantaged category, it may not allow the State or the Government from raising the question as to the maintainability of the petition. (See Bandhua Mukti Morcha (supra)).
(vi) Although procedural laws apply on PIL cases but the question as to whether the principles of res judicata or principles analogous thereto would apply depend on the nature of the petition as also facts and circumstances of the case. (See Rural Litigation and Entitlement Kendra Vs. State of U.P. 1989 Supp (1) SCC 504 and Forward Construction Co. and Others Vs. Prabhat Mandal (Regd.), Andheri and others (1986) 1 SCC 100).
(vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (See Ramsharan Autyanuprasi and Another Vs. Union of India and Others 1989 Supp (1) SCC 251).
(viii) However, in an appropriate case, although the petitioner might have moved a Court in his private interest and for redressal of the personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See 26 Shivajirao Nilangekar Patil Vs. Dr. Mahesh Madhav Gosavi and Others (1987) 1 SCC 227).
(ix) The Court in special situations may appoint Commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such committee. (See Bandhua Mukti Morcha (supra), Rakesh Chandra Narayan Vs. State of Bihar 1989 Supp (1) SCC 644 and A.P. Pollution Control Board Vs. M.V. Nayudu (1999) 2 SCC 718).
In Sachidanand Pandey and Another Vs. State of West Bengal and Others [(1987) 2 SCC 295], this Court held:
"61. It is only when courts are apprised of gross violation of fundamental rights by a group or a class action on when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending help when such is required. But this does mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants."
In Janata Dal Vs. H.S. Chowdhary and Others (1992) 4 SCC 305, this Court opined :
"109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will along have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievance, deserves rejection at the threshold."
The Court will not ordinarily transgress into a policy. It shall also take utmost care not to transgress 27 its jurisdiction while purporting to protect the rights of the people from being violated.
In Narmada Bachao Andolan Vs. Union of India & Others [(2000) 10 SCC 664], it was held:
"229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy- making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of latches if the petitioner had the knowledge of such a decision and could have approached the court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Latches is one of them.
* * *
232. While protecting the rights of the people from being violated in any manner utmost care has to be taken that the court does not transgress its jurisdiction. There is, in our constitutional framework a fairly clear demarcation of powers. The court has come down heavily whenever the executive has sought to impinge upon the court's jurisdiction."
(x) The Court would ordinarily not step out of the known areas of judicial review. The High Courts although may pass an order for doing complete justice to the parties, it does not have a power akin to Article 142 of the Constitution of India.
(xi) Ordinarily the High Court should not entertain a writ petition by way of Public Interest Litigation questioning constitutionality or validity of a Statute or a Statutory Rule.
2851. In M.C. Mehta Vs. Kamal Nath [(2000) 6 SCC 213, it was held:
"20. The scope of Article 142 was considered in several decisions and recently in Supreme Court Bar Association Vs. Union of India (1998) 4 SCC 409 by which the decision of this Court in Vinay Chandra Mishra, Re (1995) 2 SCC 584 was partly overruled, it was held that the plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are "COMPLEMENTARY" to those powers which are specifically conferred on the Court by various statutes. This power exists as a separate and independent basis of jurisdiction apart from the statutes. The Court further observed that though the powers conferred on the Court by Article 142 are curative in nature, they cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant. The Court further observed that this power cannot be used to "supplant" substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot be achieved directly."
(See also Supreme Court Bar Association Vs. Union of India (1998) 4 SCC 409).
52. This Court in Balco Employees' Union (Regd.) (supra) succinctly opined:
"77. Public interest litigation, or PIL as it is more commonly known, entered the Indian judicial process in 1970. It will not be incorrect to say that it is primarily the Judges who have innovated this type of litigation as there was a dire need for it. At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress were required to be espoused. PIL was not meant to be adversarial in nature and was to be a cooperative and collaborative effort of the parties and the court so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public interest litigation was intended to mean nothing more than 29 what words themselves said viz. "litigation in the interest of the public".
78. While PIL initially was invoked mostly in cases connected with the relief to the people and the weaker sections of the society and in areas where there was violation of human rights under Article 21, but with the passage of time, petitions have been entertained in other spheres. Prof. S. B. Sathe has summarised the extent of the jurisdiction which has now been exercised in the following words:
"PIL may, therefore, be described as satisfying one or more of the following parameters. These are not exclusive but merely descriptive:
- Where the concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded labour, undertrial prisoners, prison inmates).
- Where the affected persons belong to the disadvantaged sections of society (women, children, bonded labour, unorganised labour etc.).
- Where judicial law making is necessary to avoid exploitation (inter- country adoption, the education of the children of the prostitutes).
- Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievances redressal forums).
- Where administrative decisions related to development are harmful to the environment and jeopardize people's right to natural resources such as air or water."
79. There is, in recent years, a feeling which is not without any foundation that public interest litigation is now tending to become publicity interest litigation or private interest litigation and has a tendency to be counterproductive.
80. PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic human rights of the weak and the disadvantaged and 30 was a procedure which was innovated where a public- spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the court for relief. There, have been, in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to re-emphasize the parameters within which PIL can be resorted to by a petitioner and entertained by the court. This aspect has come up for consideration before this Court and all we need to do is to recapitulate and re-emphasize the same."
53. We do not intend to say that the dicta of this Court in Balco Employees Union (supra) contains the last words. But the same may be considered to be in the nature of guidelines for entertaining public interest litigation.
54. Incidentally, on administrative side of this Court, certain guidelines have been issued to be followed for entertaining Letters/ Petitions received by this Court as Public Interest Litigation.
55. We do not intend to lay down any strict rule as to the scope and extent of Public Interest Litigation, as each case has to be judged on its own merits. Furthermore, different problems may have to be dealt with differently."
30. There is also a case for the petitioners that the State is a guardian of all deities as of infants and, being the guardian, the State has a duty to look after the properties of the deities. We would think that, on merits, petitioners have failed to make out a case as such. Besides, we would also think that, even otherwise, in a case, where the matter is put in issue and there is very serious dispute raised, as has been done in this case, the court should be loathe to extend a helping hand to the so called public interest litigant. As we understand, nothing has been made out even on merits, which would justify our exercising the discretionary, though extra-ordinary, jurisdiction under Article 226.
31. In fact, the learned Advocate General sought time to address the Court and though we did afford some opportunity and we listed the case today, he sought further time. In fact, the learned 31 Chief Standing Counsel would point out that the State must be left free to take action, which it is authorised in law based on the reports filed.
32. While we are not certainly inclined to grant any relief to the petitioners, nothing we have said will stand in the way of the State or its authorities taking any action in accordance with law in regard to the properties, which are the subject matter before this Court.
33. There is a case for the petitioners that the property, which should have been surrendered under the U.P. Z.A. & L.R. Act, has not been surrendered. We have already noticed the case of the respondents and we do not see anything, which has been made out for us to interfere in this regard. But, we make it clear that it will certainly be open to the State and its authorities to exercise any authority they have in law to get the property, which is vested in the State or due to it in any manner known to law.
34. We also make it clear that we must not be treated having adjudicated on the rights of the parties, including those, which are pending in the form of litigation in any court or authority and the Court or authority will be free to decide the litigation untrammeled by anything contained in this judgment. We would, again, like to reiterate that we are resting our refusal to grant any relief to the petitioners on the surer foundation that the public interest litigation will not lie in the facts of this case.
35. We would think that not only must the writ petition be dismissed, but it should be dismissed with cost. We stand informed that there have been 38 postings in the matter. We do also notice that the total volumes, into which the documents run, come to about nine. Therefore, we are of the view that the writ petition should be dismissed with cost. In the facts of this case, we dismiss the writ 32 petition with cost of `30,000/- to be given to the Uttarakhand High Court Advocates Welfare Fund.
36. All the pending applications stand disposed of.
(U.C. Dhyani, J.) (K.M. Joseph, C.J.)
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P. Singh